Initially, this supreme Court case excited me. Would we get an opinion from the court about the constitutionality of excluding religious organizations from tax funded programs. However, as is usually the case, digging into the details revealed more of a mess than an opportunity.
Lets start with what initially peaked my interest. According to SCOTUSBlog, the issue in this case is:
Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.
Espinoza v. Montana Department of Revenue – SCOTUSblog.com
As I suspected, the case in question cannot be a violation of the United States Constitution because it is a question of state law, not federal.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
United States Constitution, Amendment I
But as I dug deeper into both the oral arguments at the supreme Court and the opinion of the Supreme Court of the State of Montana that was in question, I found enough confusion and ignorance to make my head spin.
The Tax Credit Program
This seems to have started with the Montana law (§ 15-30-3111, MCA) called the “Qualified Education Tax Credit For Contributions To Student Scholarship Organizations”. This law allows individuals and corporations a tax credit for contributions made to scholarship funds which assist with the tuition for students that go directly to qualified education providers. The laws basically defines a qualified education provider as a private school. Seems pretty simple and straight forward, no? Enter Montana’s “Blaine Amendment”.
The Blaine Amendment
“Blain Amendments” are named after James G. Blaine, who proposed an amendment to the U.S. Constitution to prevent government funds from going to religious organizations. While this amendment failed to get enough support in Congress, 38 states have added similar amendments to their state constitutions. These amendments are collectively known as “Blaine Amendments”.
Article X, Section 6 of Montana’ constitution reads:
The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.
Montana Constitution, Article X, Section 6
Believing the tax credit law, as written by the state’s legislature, violated the state’s Blaine Amendment, the Montana Department of Revenue adopted “Rule 1”. This rule added to the legislature’s definition of a Qualified Education Program an exception for any religiously affiliated school.
(1) A “qualified education provider” has the meaning given in 15-30-3102, MCA, and pursuant to 15-30-3101, MCA, may not be:
Montana Supreme Court Opinion
(a) a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination; or
(b) an individual who is employed by a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination when providing those services.
(2) For the purposes of (1), “controlled in whole or in part by a church, religious sect, or denomination” includes accreditation by a faith-based organization.
Parents of students who attend religiously affiliated schools sued, arguing that Rule 1 violated the free exercise clauses of both the Montana and U.S. Constitution. As I’ve already noted, this cannot be a violation of the U.S Constitution since Congress did not make this law. But is it a violation of Montana’s Constitution?
The state shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
Montana Constitution, Article II, Section 5
Does the restriction of monies donated to a scholarship fund prohibit the free exercise of someone’s religion, simply because the donor claimed a tax credit for the donation? No. I would suggest it violates the establishment clause, since it is the state determining what beliefs it will endorse by issuing tax credits.
ESTAB’LISH: To found permanently; to erect and fix or settle; . . . To enact or decree by authority and for permanence; . . . To make firm; to confirm; to ratify what has been previously set or made.
Webster’s 1828 Dictionary
Montana District Court Opinion
The District Court noted that the credits did not “involve the expenditure of money that the state has in its treasury.” Since the money was not subject to the appropriation of, nor the expenditure by, any money from a public entity, the court found that tax credit law, as written by the legislature, was not unconstitutional and enjoined the Department of Revenue from enforcing their Rule 1. The District Court however did not offer an opinion on the constitutionality of Rule 1.
Montana Supreme Court Opinion
The District Court’s opinion was appealed to the Montana Supreme Court. This court found that the law as written did violate Article X, Section 6 of the Montana constitution. The justices apparently believe that giving a tax credit to be a “indirect appropriation or payment” of public funds. And since Montana’s Blaine Amendment prohibits such appropriations or payments for any sectarian purpose or to aid to any school controlled by a religious entity, the law itself was unconstitutional. The court went on to say that the Montana Department of Revenue exceeded their authority when they enacted Rule 1. They therefore reversed the District Court’s order of summary judgement for the plaintiffs and stated that the law must be severed from the rest of the Montana Code.
There is one other area of the Montana Constitution that the Montana Supreme Court did not use in their opinion, Article V, Section 11(5).
No appropriation shall be made for religious, charitable, industrial, educational, or benevolent purposes to any private individual, private association, or private corporation not under control of the state.
Montana Constitution, Article V, Section 11(5)
If a tax credit is considered an indirect appropriation for Article X, Section 6, would it not be considered one for Article V, Section 11(5)? Based on the language in Article V, no appropriation of state funds can be made for any private school. A private school is, by definition, a private association or corporation not under the control of the state.
U.S. Supreme Court Petition
The parents then appealed the decision of the Montana Supreme Court to the U.S. supreme Court, on the grounds that the state’s Blaine Amendment discriminates against religious conduct, beliefs, and status. During oral arguments I read the usual spin and positioning you would expect from the lawyers arguing a case, and the expected questions from the justices. What I did not see is a single question or statement about the fact that the First Amendment specifically applies only to the U.S. Congress, not to state laws.
A case could be made that the state’s Blaine Amendment is a violation of the 14th Amendment’s equal protection clause, since religious citizens are not afforded the same privileges of access to state funds that other citizens are. But I did not see that made during oral arguments either.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;
U.S. Constitution, Amendment XIV, Section 1
Conclusion
As I said at the beginning, this case is a mess. In fact, it exposes the mess of the Blaine Amendments in the states. It shows how many Americans believe the federal government rules over the states. And it shows just how little not only the American people know about their Constitution, but how little the judicial branches of our governments know about the supreme law they swore or affirmed to support.
Ultimately, this is Montana’s problem, and Montana citizens are going to have to fix it. They must ask themselves whether they want to establish and promote only certain forms of belief or not. If the citizens of the State of Montana want to treat religious people and the organizations they form as second class citizens, then they should repeal the freedom of religion clause from their Constitution. And if they do not want to establish a secular form of belief as the state religion, then they should remove the discriminatory Blaine Amendments from their Constitution, and allow all of their citizens to receive all of the privileges the state offers. Otherwise, they are just hypocrites, trying to have their freedom and restrict it to.
